The sedition (derived from " incitement " in the political and social sense , from Middle High German rushing "drive", originally "bring to Follow" and related to " hate ") is in Germany a statement offense to of the Criminal Code (Criminal Code).
(1) StGB defines the offense of sedition:
This current version came into force on January 21, 2015.
Paragraph 2 includes all possible public utterances in speech, writing and images that meet the criteria mentioned in paragraph 1 in the threat of punishment.
Paragraph 3 includes persons in the threat of punishment who " approve of an act committed under the rule of National Socialism of the type specified in Paragraph 1 of the CCAIL in a manner that is likely to disturb the public peace, publicly or in a meeting, deny or play down ". What is meant are crimes against humanity , especially genocide .
Paragraph 4 criminalizes the approval, glorification or justification of the National Socialist rule of violence and arbitrariness, which disturbs the public peace in a way that violates the dignity of the victims. This paragraph came into effect on April 1, 2005. According to the decision of the Federal Constitutional Court of November 4, 2009, it is a special provision and not a general law , but given the history of the creation of the Basic Law (GG) and the Federal Republic of Germany as a counter-draft to National Socialism with the guarantee of freedom of expression in Art. 5 Para. 1 and 2 GG is to be agreed.
In principle, the fundamental right to freedom of expression also includes the right to assert false facts. However, the legislature can restrict the right to assert false facts through laws, for example in the case of the offenses libel , defamation and fraud .
Outside of the protection of honor and the protection of minors (→ triad of barriers , Paragraph 2 of the Basic Law), freedom of expression may only be restricted by such laws (“general laws”) “which do not prohibit an opinion as such, which do not oppose the utterance of a Judging opinions as such, which rather serve the protection of a legal interest that is to be protected without regard to a specific opinion ”. The prevailing legal opinion sees StGB as justified because it serves the protection of public peace and human dignity, which is violated by the completion of the facts described, and freedom of expression, as it were, is only reflexively affected by the protection of public peace.
Paragraph 1 and 2
Criminal Code read in the original version of the Criminal Code of 1871:
"Anyone who publicly incites different classes of the population to engage in violence against one another in a way that endangers public peace will be punished with a fine of up to two hundred thalers or imprisonment for up to two years."
The new version of this paragraph was based on the view that National Socialism was also made possible by legally tolerating inflammatory propaganda.
At the beginning of January 1959, the federal government presented the first draft of a law for the new version of Criminal Code. It responded to a series of anti-Semitic crimes , including arson attacks on synagogues , and judicial scandals. In the spring of 1957 Ludwig Zind , a former member of the SD , insulted a Jewish businessman and proudly announced hundreds of murders of Jews during the Nazi era . In April 1958, he was sentenced to one year in prison for insulting and disparaging the memory of the deceased , but fled abroad before entering prison. In the process he had confirmed his National Socialist views and received a lot of approval from the audience. In July, the former concentration camp doctor Hans Eisele also fled abroad; the concentration camp doctor Herta Oberheuser was released early and was able to resume as a doctor.
These and other cases were carefully registered by the German and international public. The case of the Hamburg resident Friedrich Nieland became known, who was not convicted by the Hamburg Higher Regional Court in 1957 despite the dissemination of an anti-Semitic inflammatory pamphlet . At Christmas 1959 there was a serious attack on the Cologne synagogue , which Chancellor Konrad Adenauer had inaugurated shortly before with the Jewish community, followed by 700 acts of unification by the end of January 1960. This aroused international outrage and concerns about the stability of West German democracy . The SED spoke of a “re-fascization” of the Federal Republic.
As a result, a major judicial debate requested by the SPD took place in the Bundestag on January 22, 1960 . The opposition parties SPD and FDP rejected the government's draft law as a special law: Adolf Arndt spoke of a “ Jewish star ” law that would legally brand the Jewish minority as privileged. Instead, any degradation of minorities must be punished as an attack on human dignity. His view prevailed in the legal committee of the Bundestag, so that in the summer of 1960 not "incitement to racial hatred", but the attack on the "human dignity of others" was included in the legal text.
Holocaust denial was punishable as a simple insult until 1994 . On September 18, 1979, the Federal Court of Justice granted people of Jewish descent to recognition of the fate of the persecution of Jews under National Socialism on the basis of their personal rights in the Federal Republic. Since the end of 1994 it has been a criminal offense for sedition. Previously, in March, a conviction of the then NPD party leader Günter Deckert for sedition had failed because the Federal Court of Justice had not considered this fact to have been sufficiently fulfilled by denying the Holocaust. This decision was seen as a scandal by the public and the Central Council of Jews called for a change in the law that criminalizes Holocaust denial. On April 13, 1994, the Federal Constitutional Court (BVerfG) ruled that Holocaust denial does not fall under the fundamental right of freedom of expression according to Paragraph 1 of the Basic Law: The Holocaust denial is an "untrue factual assertion", i.e. the denial of a fact that has been proven many times which in itself is not covered by the right to freedom of expression, as it cannot contribute to the constitutionally required formation of opinion. Even the test of whether Holocaust denial could even be considered as an opinion worthy of protection in terms of freedom of expression was denied. The federal government later responded to the call for Holocaust denial to be punishable by expanding the offense of sedition on December 1, 1994 accordingly, so that Deckert could now be sentenced to imprisonment for it.
The BVerfG ruling met with criticism: Statements denying the Holocaust were not limited to mere assertions of fact, but were linked to value judgments. According to the established case law of the BVerfG, these are also covered by the scope of protection of the fundamental right if they are total nonsense or even defamatory statements. These would only be exempted from fundamental rights protection at the level of fundamental rights barriers.
The political scientist Peter Reichel thinks that the previous law had already granted the privacy of all victims of Holocaust deniers, while the state is now for the first time punishing a certain factual claim as a lie and trivialization. By trying to legally exclude certain false assertions from the free communication about history, one encourages a renewed tendency towards conviction criminal law , instead of positively influencing the opinion-forming process, especially among unsettled young people. This is questionable for a liberal theory of the rule of law, since freedom of opinion is not just an individual but a collective basic right: “It is in the public interest of a pluralistic society, which is essentially characterized by the rationality of communicative action, not to hinder the free formation of opinions and will. “The borderline case of Holocaust denial makes it clear that“ there are no definitive answers to the question of historical truth even if we so wish for moral and political reasons. The protection of legal interests can only extend to the honor and memory of those persecuted by the Nazi regime, but not to a correct historical image administered by the state. "
In the summer of 2008, the former constitutional judges Winfried Hassemer and Wolfgang Hoffmann-Riem criticized the ban on Holocaust denial: The case law based on (3) StGB was unsuitable for protecting the human dignity of the victims' descendants. The militant democracy should refrain from “ creating martyrs through repression ”.
History revisionists and right-wing extremists fight (3) StGB as the “Auschwitz Act” or “Lex Engelhard”. Helmut Schrätze saw it as a "special law" against questions of contemporary history that are supposed to be scientifically "still to be clarified" . In 1996 he published an appeal of the 100, first published by the Society for Free Journalism - Freedom of expression is in danger! , which also appeared in the magazine Junge Freiheit and was signed by many Holocaust deniers. The text attacked the current judicial practice of not subjecting the Holocaust to legal evidence every time as clearly legal (for example in the Auschwitz trials of the 1960s and 1970s) as historically proven historical fact and rejecting corresponding applications.
German historians assess the ban on Holocaust denial differently. In 1994 Ernst Nolte called for an “objectification of history” and rejected the given “dogmas” or “obvious truths”: History is not a legal object. In a free country it is neither for the parliament nor the judiciary to define historical truths. Eberhard Jäckel criticized in 2007:
“In the great debate about denazification, Eugen Kogon once demanded the right to political error in the 1950s. And I believe that a free society must allow that, and here too it must allow the right to, yes, to stupidity. Mental illness cannot be forbidden either ... The point here is that a certain historical image should be forbidden, and that does not seem to me to be worthy of a free society. "
Jäckel advocated ignoring the Holocaust deniers as long as they did not directly call for violence against people and property.
Hans-Ulrich Wehler , on the other hand, focused primarily on argumentative and political arguments with Holocaust deniers, but also considered the use of all legal means to be necessary to prevent acts of violence that were justified and thus encouraged by Holocaust denial. The new version of the offense of sedition had become necessary in order to be able to take legal action against Auschwitz deniers after the West German judiciary had largely stopped the prosecution of National Socialist criminals in the 1970s:
“The denial of such an unimaginable murder of millions - a third of all those murdered were children under the age of 14 - is not so easy to accept as something that is covered by freedom of expression. There should be a right-wing zone in which this lie is pursued. In weighing up interests, I find - as much as I am in favor of the right to freedom of expression - one cannot hide the denial of the Holocaust with excessive generosity behind free expression. […] The fact that the subject is so far away in Anatolia , Brazil or China and therefore not of interest to many, cannot be a reason for us to forego prosecution. The universal validity of this criticism and the prosecution cannot be the measure of whether one undertakes or lets it be. "
According to the decision of the Federal Constitutional Court of November 9, 2011,StGB is to be interpreted restrictively in the light of freedom of expression, so that someone who leaves writings to an innkeeper in which the Holocaust is played down and Germany's sole war guilt is questioned, does not without further ado makes hate speech a criminal offense.
With the law amending the Assembly Act and the Criminal Code of March 24, 2005, assembly law prohibition of the Hess marches in Wunsiedel . However, since the scope of the provision is not limited to this, (4) StGB does not constitute an inadmissible individual law .(4) of the Criminal Code was added to the law with effect from April 1, 2005. This regulation aims in particular to facilitate the
Application to acts abroad
Offenses that are committed abroad in accordance with Internet , for example in the form of an HTML page. This results, for example, in the jurisdiction of German courts for hate speech offenses that are committed from abroad. That is why, for example, the Holocaust denier Ernst Zündel was convicted by the Mannheim District Court in February 2007 for inciting propaganda that he had published on the Internet from the USA and Canada .Criminal Code, whether by German citizens or by foreigners, can be prosecuted as a domestic crime if they appear to have been committed in Germany, i.e. if they affect public peace in Germany and the Violate the human dignity of recognizable minorities in Germany. For example, it is sufficient that criminal content can be accessed from Germany via the
Applicable only to recognizable minorities
The German people as a whole. On February 15, 2017, the Hamburg public prosecutor closed the investigation against a board member of the Turkish Parents' Association in Hamburg, who had described the Germans as a "mutt terrace". The reason given was that the offense of incitement to hatred must be “a group that stands out from the mass of the domestic population as an externally recognizable unit”, and that is not the case with “all Germans”.of the Criminal Code is not really applicable to hate speech against the
- Category: Incitator under German law
- Incitement to hatred - analogous offense in the Austrian Criminal Code
- Racism penal norm - analogous offense in the Swiss penal code
- Incitement to racial hatred - analogous offense in French criminal law
- Laws against Holocaust Denial
- Hate crime ("hate crime")
- Andreas Stegbauer: Right-wing extremist propaganda in the light of criminal law. VVF, Munich 2000, ISBN 3-89481-396-2 .
- Benedikt Rohrßen: From the "incentive to class struggle" to "sedition" (§ 130 StGB). Discussion of reform and legislation since the 19th century. De Gruyter, Berlin 2009, ISBN 978-3-89949-750-2 . (To the content: degruyter.com ).
- Mathias Hellmann, Julia Gärtner: News about incitement to hatred - European guidelines and their implementation. In: NJW . 14/2011, p. 961.
- Sergey Lagodinsky: Contexts of Anti-Semitism. Legal and social aspects of freedom of expression and its barriers. Metropol Verlag, Berlin 2013, ISBN 978-3-86331-025-7 , 424 pages.
- Scientific services of the German Bundestag: sedition (PDF; 67 kB)
- Judgment of the Federal Constitutional Court on Holocaust denial of April 13, 1994, Az. 1 BvR 23/94, BVerfGE 90, 241.
- Methods for law enforcement and experiences with the criminal prosecution of anti-Semitic and right-wing extremist agitation on the Internet. Article on parliamentary question in Hagalil, 22 March 2003
- Harry H. Kalinowsky: Anti-Semitism and Criminal Law (Friedrich Ebert Foundation)
- Friedrich Kluge , Alfred Götze : Etymological dictionary of the German language . 20th edition, ed. by Walther Mitzka , De Gruyter, Berlin / New York 1967; Reprint (“21st unchanged edition”) ibid 1975, ISBN 3-11-005709-3 , p. 306 ( hetzen ).
- BGBl. I p. 10 .
- Law amending the Assembly Act and the Criminal Code , Federal Law Gazette I p. 969 , 970.
- BVerfG , press release No. 129/2009 of November 17, 2009: (4) of the Criminal Code is compatible with (1) and (2) of the Basic Law
- BVerfG, decision of November 4, 2009, Az. 1 BvR 2150/08, full text .
- BVerfG, judgment of January 15, 1958, Az. 1 BvR 400/51, BVerfGE 7, 198 - Lüth, paragraph no.36 .
- Wikisource : s: Criminal Code for the German Empire (1871) # §. 130
- Peter Reichel: past in Germany. Dealing with the Nazi dictatorship in politics and the judiciary. Beck, Munich 2001, ISBN 3-406-45956-0 , p. 144 ff.
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- Peter Reichel: past in Germany . Munich 2001, pp. 144–157.
- BGH , judgment of September 18, 1979, Az. VI ZR 140/78, full text .
- From the grounds of the Mannheim judgment against Günter Deckert in: Die Zeit, August 19, 1994.
- Jews demand a change in the law in: FAZ, March 21, 1994.
- BVerfG, decision of April 13, 1994, Az. 1 BvR 23/94, BVerfGE 90, 241 - Auschwitz lie, para. No. 40.
- Peter Reichel: past in Germany , Munich 2001, p. 156.
- Interview with Winfried Hassemer - "The Basic Law is there to take action" ( Memento from January 2, 2010 in the Internet Archive ) In: Süddeutsche Zeitung , June 10, 2008
- “Do not punish Holocaust deniers”. In: Der Tagesspiegel , July 10, 2008
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- Interview with historian Wehler: “Pity for Irving is wrong”. Spiegel Online , February 21, 2006
- BVerfG, decision of November 9, 2011, Az. 1 BvR 461/08, full text .
- Federal Law Gazette I p. 969
- BT-Drs. 15/5051 (PDF) of March 9, 2005. Draft of a law amending the Assembly Act and the Criminal Code, recommendation for a resolution and report of the Interior Committee, p. 6.
- BVerwG , judgment of June 25, 2008, Az. 6 C 21.07, full text Rn. 27 f.
- BGH, judgment of December 12, 2000, Az. 1 StR 184/00, full text .
- Thomas J. Primig: The "Holocaust judgment" of the German BGH. (PDF) In: International Criminal Law and the Internet. Problems in the application of national criminal law to crime in cross-border data networks , (no year), p. 7 ff.
- Dr. Thomas Fischer : Criminal Code with subsidiary laws . 64th edition. CH Beck, Munich 2017, ISBN 978-3-406-69609-1 , p. 1002-1020; in particular p. 1006 .
- Why the public prosecutor sees no incitement to hatred. In: Spiegel Online . March 1, 2017, accessed March 1, 2017 .